HL Deb 01 November 1988 vol 501 cc110-35

4.51 p.m.

Clause 6 [Proceedings]:

Lord Sanderson of Bowden moved Amendment No. 3:

Page 5, line 8, at end insert— (", except where the matter which is the subject of the vote relates to the appointment—

  1. (a) of a co-opted member, or
  2. (b) to any particular office or committee,
in which case the decision shall be by lot.").

The noble Lord said: My Lords, in Committee we discussed the issue of whether or not a board chairman should use his casting vote when the subject of the vote relates to the co-option of a person to the board or the appointment of a board member to any particular office, or to the membership of a committee of the board.

Noble Lords opposite, and the noble Lord, Lord Carmichael of Kelvingrove, in particular, felt that, in those circumstances and where there was an equality of votes, the decision should be taken by lot. My noble friend Lord Dundee undertook to consider the arguments put forward by noble Lords. This we have now done.

I read the extracts of the debate from the Official Report with great interest, particularly the points made about seeking to avoid placing the chairman of the board in an embarrassing position. I concur with the sentiments expressed then. I have, therefore, brought forward this amendment, which I hope will satisfy the concern of noble Lords. In fact this amendment goes further than the amendment which the noble Lord, Lord Carmichael, tabled in Committee, because it ensures that the wider representation on board committees will not be decided by the chairman's casting vote. Had we accepted the amendment of the noble Lord, the chairman's casting vote would have continued to apply when non-board membership of board committees was in question. I hope with that explanation I have the support of the House. I beg to move.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to the Minister for having taken heed of the debate we had earlier on this matter. I thank him for his flexibility.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 4: Page 5, line 10, leave out ("third") and insert ("half") .

The noble Lord said: My Lords, in Committee we discussed an amendment by the noble Lord, Lord Carmichael, which would have provided that one of the co-opted members of a community school should be drawn from the community user groups. In answer to the points put by the noble Lord I pointed to the provisions of Clauses 6(3) and (10) of the Bill whereby boards can form committees which include non-board members and invite persons to attend board meetings as the best way in which community and specialist interests could be represented to the board. I remain firmly of that view. However, I did recognise during the debate the genuine concern of noble Lords that restricting non-board membership of board committees to one-third could cause practical problems, and I promised to address this point on report.

This amendment addresses those concerns. It increases the limit of non-hoard membership from one-third to one-half. I understand that both Lothian and Dumfries and Galloway Regions, where an experiment has been going on, as noble Lords will know, were very keen to raise the limit. Taken with the provisions of Clause 6(10) the amendment will provide ample opportunity for community and special interest groups to be well represented within the structure of boards whose schools have special interests. I beg to move.

Lord Carmichael of Kelvingrove

My Lords, again I am pleased that the Minister has paid heed to what was said in Committee. We should have liked to go a little further, but we must be grateful for whatever the Minister gives us. I am very pleased to accept his amendment, and I thank him for it.

Baroness Carnegy of Lour

My Lords, I wish to add my thanks to my noble friend for what he has done in this amendment which was put forward, I think, specifically in response to something I said as well as in response to the remarks of others. That was the case also with the previous amendment.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 5: Page 5, line 13, at end insert ("Provided that a person who is disqualified under this Act for being elected or co-opted or being a member of a School Board shall be disqualified for being a member of a Committee of that Board.").

The noble Lord said: My Lords, this amendment is essential to prevent a person who is prevented by law from serving as a member of a school board from having direct involvement in a board's decision-making process. As the noble Lord, Lord Sanderson of Bowden, mentioned earlier, that is not to say that a board cannot take the advice of a disqualified person. It can do that under Clause 6(10). It must be acknowledged that such a person may have special knowledge or experience which would be valuable to a board and which a board would not wish to lose.

However, it would be quite wrong of a person, whom the law has determined should not be a member of a board, to be given deliberative or decision-making powers through membership of a board's committees or sub-committees. Therefore, this amendment is necessary to prevent the possibility of circumvention of the legislative intent.

The amendment is really derived from Section 59(1) of the Local Government (Scotland) Act 1973, which makes similar provision for the committees of local authorities. It would obviously be inappropriate for boards to be placed in a different position to that of an education authority in this respect. I beg to move.

Lord Sanderson of Bowden

My Lords, I must thank the noble Lord, Lord Carmichael, for what is clearly intended to be a helpful amendment to correct what he sees as an anomalous position. But I have given thought to the question and do not believe that it would be right to accept his amendment. We are correct to apply general conditions of disqualification for membership of school boards which could have a range of executive functions. But similar provisions are not necessarily appropriate for sub-committees which are to have no substantive decision-making powers; which will have more specific concerns and whose membership can be changed easily by the board if some deficiency is discovered. The important thing will be for a board to select people who are best placed to advise and give views on the particular area being considered by the sub-committee.

I shall give an example which will, I think, help the noble Lord. It may be an extreme example, but nevertheless I shall give it. An undischarged bankrupt may be an inappropriate choice for a finances sub-committee, but if he had a handicapped child he might be a reasonable selection for a subcommittee to discuss special needs provisions within the school.

We have considered the matter carefully, and we think that what is appropriate in the Bill at the moment should stand. I am afraid that 1 shall have to resist this amendment.

The Earl of Selkirk

My Lords, what does my noble friend mean by "disqualified"? There are certain kinds of criminal offences which I should have thought would have been highly inappropriate for someone to have committed who was in this position. I do not know whether or not we are referring to such offences. An offence may not be apparent, but perhaps that does not matter. How far does the word "disqualified" extend in this matter? I should have thought that certain kinds of offence would be highly undesirable. It may be that those offences were unknown. Perhaps the pretensions of those people were not known. Therefore this rule would be no bad thing. It would make certain that such persons could be evicted from their position if their offences became known.

Lord Sanderson of Bowden

My Lords, we are talking about a disqualification as regards subcommittees of school boards. I appreciate what my noble friend is saying about the general disqualification rules, but, as regards sub-committees which do not have a substantive part in the decision making of school boards but report to them, we are anxious that they should not be subjected to the powers which the noble Lord, Lord Carmichael, would seek to impose on that particular body.

Lord Carmichael of Kelvingrove

My Lord, the Minister has not gone as far as we had hoped. However, he has confirmed that the board itself will have the last word in all the decisions which come from the subcommittees, and that is reassuring. I am not sure that his example was perfect. I should have thought that a bankrupt would be a better authority on finance than many people who serve on the boards. However, I take the general drift of his argument. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 6:

Page 5, line 14, leave out subsection (4) and insert— ("(4)(a) A School Board may arrange for the discharge of any of their functions by any of their members or their Clerk. (b) Where a School Board consider it expedient for the discharge of their functions they may institute, defend or appear in any legal proceedings. (c) Any legal proceedings against a School Board and any notice or other documents shall be deemed to have been duly served on the Board if served on the Clerk of the Board.").

The noble Lord said: My Lords, Amendment No. 6 is rather complicated but I believe that it is an important amendment. It deals with a complex matter which at present is expressed in the Bill by the power given to the board to delegate to any of its members or its clerk the limited power to execute documents. The matter in question is the ordinary day-to-day administration of the board's affairs and goes well beyond that limited power of execution of documents.

Notwithstanding the explanation given by the Minister in Committee, we feel that the Bill as it presently stands does not adequately cover the needs of efficient administration. Paragraph (a) of the amendment gives the board the power to delegate functions to any member or to the clerk. In Committee the noble Lord, Lord Sanderson of Bowden, said (at col. 1065 of Hansard for 18th October) that: The Bill already provides in Clause 6(4) for a board to delegate functions to any of its members or to the clerk".

We submit that the present provision is restricted to the execution of documents and that the proposed amendment more accurately deals with the situation.

In paragraph (b) the amendment affords the board a specific power to raise or take part in legal proceedings, but only where it considers it expedient for the discharge of its functions. It has been argued that that provision is unnecessary and that the general powers contained in Clause 8(1) afford adequate provision. However, we believe that both this amendment and Clause 8(1) are quite specifically related to the board's functions and that the powers contained in the amendment do not go beyond the intentions which Clause 8(1) is understood to express.

The question is whether or not the general power is sufficient to afford the board the right to seek remedy or to defend itself in litigation. It would be very useful for anyone to rely upon a general power for the specific purpose of litigation, and such a situation would be quite exceptional in a statutory body.

There is a further point which has to be considered; that is, the relationship between the education authority and the school hoard. Again the noble Lord, Lord Sanderson of Bowden, referred to this in Committee and mentioned the possibility of the authority imposing restrictive conditions in delegation preventing the board from litigating without consultation. He also mentioned the relationships of principal and agent in third-party dealings. The noble Lord suggested that those were examples where the constraints of Clause 8(1) would restrict the freedom of the board to litigate. The amendment as drawn would achieve the same level of control.

Paragraph (c) of the amendment deals with the question of service of writs or notices. The difficulty created by the absence of any statement within the Bill on the mode of service arises because the school board will have no place of business. There will be the possibility of confusion between the school—which is an organ of the education authority—and the hoard. There is the real possibility that unless matters are spelt out the majority of notices destined for school boards will be served upon the headmaster of the school or upon the education authority. In such cases service on the board would not have taken place. Again there is the possibility that service will be on individual members of the board and in that case the law is clear—the service would be ineffective.

In the absence of specific provisions and of a place of business for the school board there does not appear to be authority for the statement that it is an accepted principle that service on the office holder of a statutory body amounts to service on that body. The circumstances are unusual because most other statutory bodies will have a place of business, an official registered business address, from which that principle might ordinarily be deduced.

It would appear that unless specific provision is made as proposed in this amendment there will at best be great confusion or at worst service of the notices and other documents, however effected, could be open to challenge. I know that the situation is rather complicated but I am sure that the Minister will agree that this is an important amendment. If we have done nothing else I believe that I and the people who have advised me have made the Minister aware of a problem which he may require some time to study. I beg to move.

Baroness Carnegy of Lour

My Lords, quite apart from the merits or demerits of the amendment—and I shall be interested to hear what my noble friend has to say—I should like to ask the noble Lord, Lord Carmichael, whether he does not think that paragraph (a) of the amendment clashes with paragraph (c). Paragraph (a) says that the: School Board may arrange for the discharge of any of their functions by any of their members or their Clerk. whereas pargaraph (c) refers to writs being served on the clerk alone. Should the amendment not indicate that paragraph (c) would overrule paragraph (a), or am I wrong?

Lord Carmichael of Kelvingrove

My Lords, the one part of this complicated amendment which I really understand is paragraph (c). That seems to me to give a focus for the board so that the only person on whom a writ could be served is the clerk to the board. Even in the example which I gave of a writ or correspondence being addressed to a school, it would be addressed not to an individual but to the clerk to the board. I thought that that obviated any confusion between the board's power to arrange for the discharge of its functions by anyone other than the clerk except in this rather legalistic matter of the serving of writs, which has been included in paragraph (c).

Lord Sanderson of Bowden

My Lords, this is an important amendment and I feel that the noble Lord, Lord Carmichael, and I have been here before.

First, let me deal with subsection (4)(a). On the face of things it seems sensible to allow boards to delegate actions to members or their clerks. However, as the noble Lord said there is already provision for them to do this in Clause 8(1), which allows boards to act in any way that will facilitate discharge of their functions, provided that they do so in conformity with the rest of the Bill. Subsection (4)(a) has no such proviso and would appear to allow boards to delegate functions (such as their role in appointments procedures, for example) which could never be delegated to individuals.

Turning to subsection (4)(b), as I said in Committee, this would give boards specific power to instigate or take part in legal proceedings. This is unnecessary because, in general terms under Clause 8(1), boards can act in pursuit of their functions and powers. There are other important points to bear in mind. The statutory framework that we have created is one of powers but also one of necessary constraints. Under Clause 8(1) the general powers of a board to act are constrained by other provisions within the Bill. The amendment as drafted would give boards an unrestrained right to pursue legal action.

As I have said, this is not true of the Bill as it stands. The checks and balances that we have carefully included in the Bill (to take the examples I gave in Committee) would permit an authority to make a condition of delegation referral to the authority where legal action on the board's part is liable to involve substantial sums; boards are also constrained within a relationship of principal (the authority) and agent (the board) when dealing with third parties. Rightly an authority might become involved in a decision where a board might consider legal action. The devolved perspective of the authority might well be useful in solving matters through settlement rather than hasty legal action.

Finally, turning to paragraph (c), the service of notices on the clerk, the Bill quite deliberately does not provide for this. This is simply because it is unnecessary to do so. I repeat what I said in Committee. It is a recognised legal principle that service of a document on an officer or office-holder of a statutory body counts as satisfactory service of that document on the body concerned. I am sure that the inappropriateness of such a specific provision as is proposed by the amendment is self-evident. We are not talking about an education authority with established offices, as the noble Lord said, or a place of business. We are discussing a school board. In any case, such a provision would be meaningless if a board had no clerk for a period for any reason, such as perhaps if the clerk had died. Further, with reference to the clerk, an authority has several officers. It is sensible therefore for documents to be served on the Director of Education. But, as I said, a board will have only one clerk and if he is not available no document could be served.

The noble Lord, Lord Carmichael, made reference to my remarks in Committee. I was speaking in the context of an amendment which gave powers of execution of documents. The reference to Clause 6(4) is therefore accurate. I believe that the amendment that we are discussing today is more generally phrased and therefore reference to Clause 8(1) is correct.

Lord Carmichael of Kelvingrove

My Lords, I am slightly confused on the last point. I can understand that the office of the clerk might be vacant for whatever reason and that the tightness of the suggestion in subsection (4)(c) might therefore be restrictive. However, is it not the case that service could be made on individual members of the board? In that case I am told that the law is clear and the service would be ineffective. The noble and learned Lord the Lord Advocate is present in the Chamber and I am sure he will clear up that point of law.

Another point that I should like to make—and perhaps it is now contained somewhere in the Bill but I am not aware of it—is that perhaps a letter to the authority addressed to the board would be sufficient. Obviously that would clear up something, although I think it will raise other questions.

Lord Sanderson of Bowden

My Lords, with the leave of the House, I should like to study what the noble Lord has said. Perhaps I could contact him before the next stage of the Bill so that we each can understand exactly what the other has in mind. My noble and learned friend the Lord Advocate has listened to this discussion and of course I shall take his advice. With that assurance I hope that the noble Lord will consider withdrawing his amendment.

Lord Carmichael of Kelvingrove

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 7: Page 5, line 17, at end insert ("and shall for that purpose make Standing Orders.").

The noble Lord said: My Lords, we have dealt with this point before but I believe that the matter of standing orders is rather important. It seems obvious that if a school board is to operate properly and effectively it will need to have standing orders. There are many procedural matters which must be regulated by standing orders. Moreover, during discussions in Committee a number of matters were mentioned for which local authorities are regulated by statute and Ministers indicated that in relation to school boards such matters should be regulated by standing orders.

The noble Lord, Lord Sanderson, made clear that assistance would be given to the boards in drawing up the first set of standing orders. He indicated that boards would be told that they must have standing orders. It will be a matter for the boards themselves to set and vary them, but it appears to be the intention that hoards should be under a requirement to have them.

Given that the principle in Clause 6(5) as it stands is generally accepted, it gives boards the full and necessary powers to enable them to take whatever advice they wish and to draw and vary their standing orders. It seems that any properly organised board will take that action. However, I am sure that the noble Lord will agree that it requires to be recognised that there is likely to be great variety in the behaviour of individual boards. The possibility exists that a hoard may omit to heed the most strongly emphasised guidance and in those circumstances standing orders may not be made. When a crisis arises the discovery that there are no standing orders may come too late. There may be a feeling that these matters can all be settled by good will but those of us who have spent some time in such meetings know how big a pitfall is that idea.

Within the terms of Clause 6(5) as it stands I believe that the possibility exists that some areas will not bother with standing orders; they will let them slip or the orders will not be adequate. We believe that this matter is too important to be left to chance. For that reason it appears essential that boards should be under a statutory duty to make standing orders. I beg to move.

Lord Sanderson of Bowden

My Lords, as the noble Lord, Lord Carmichael, said, Clause 6(5) already provides for boards to make standing orders. It has always been the Government's intention that they should make them. However, the proposed amendment would go much further. By using the word "shall" it would require all regulation of board proceedings to be by standing orders. There would be no opportunity at all for flexibility in proceedings. For example, unless standing orders specifically provided for it, the chairman would not even be able to vary the order of consideration of agenda items to suit the convenience of the board. The result would be hopeless rigidity or standing orders of monumental complexity and length relative to the size and local nature of the board.

I understand what the noble Lord is driving at. The alternative would be to say that they "may" make standing orders, but that is already the sense of the Bill's provisions. I hope that with that explanation the noble Lord will consider withdrawing his amendment.

Lord Carmichael of Kelvingrove

My Lords, I can see the difficulty. It could be taking a sledgehammer to crack a nut. However, perhaps the Minister could think in terms of at least model guidelines or model standing orders being issued. There will be a number of groups which are inexperienced in these matters and it would be helpful if there were some kind of form or standard.

Lord Sanderson of Bowden

My Lords, with the leave of the House, perhaps I may say that indeed that is the form of guidance that we shall be working on very closely.

Lord Carmichael of Kelvingrove

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, before calling Amendment No. 8 I should explain that it pre-empts Amendment No. 9. Therefore if Amendment No. 8 is agreed, I cannot call Amendment No. 9.

Lord Carmichael of Kelvingrove moved Amendment No. 8:

Page 5, line 22, leave out subsection (7) and insert.— ("7(a) Every School Board shall keep minutes of their proceedings and any minute of a meeting purporting to be signed by the person presiding thereat shall be received in evidence without further proof. (b) The minute of the proceeding of a School Board shall be made available for inspection by their education authority on request at any reasonable time.").

The noble Lord said: My Lords, the import of this amendment is that where a minute of a meeting of the board or any of its committees is signed by the person chairing the meeting, that minute shall be accepted as evidence of the proceedings. The provision is derived from Section 43 and Schedule 7, paragraph 7(1) of the Local Government (Scotland) Act 1973.

The provision is of incalculable value in establishing the deliberations and decisions of local authorities. If it were not for this provision the minutes would not prove themselves and it would be necessary on any occasion where evidence of the proceedings were required to have corroborated evidence that the minutes were correct. In court proceedings it would be necessary to lead evidence of witnesses who had been present at the meeting if this provision were not made. The Minister may suggest that we are making procedures too formal. However, I believe that this is a provision which should be readily accepted.

Perhaps I may briefly refer to Amendment No. 9 with regard to the education authority. This amendment gives the authorities the right to obtain copies of the minutes if they so wish, for the purpose of enabling them to retain a formal record of the board's proceedings. I find it difficult to understand why the one should exclude the other but perhaps the Minister will explain this to me. I beg to move Amendment No. 8.

Lord Sanderson of Bowden

My Lords, I listened carefully to what the noble Lord said. I also looked at what was said on this matter in Committee. I have no objection to the principle of these amendments although there are some technical and stylistic problems. For example, I take it that the amendment to line 24 was supposed to follow from the existing terms of the Bill. Unfortunately the first amendment removes these words. However, if the noble Lord will consider withdrawing these amendments, I shall certainly consider this and come to an agreed form of words. Perhaps he will discuss the matter with me before the next stage of the Bill. With that assurance, I hope that he will seek at this stage to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I am only too pleased with these statements from the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

My Lords, since this amendment has been withdrawn, I can put Amendment No. 9 to the House.

[Amendment No. 9 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 10: Page 5, line 33, leave out ("may, unless he is a member of the Board") and insert ("shall").

The noble Lord said: My Lords, in the course of earlier debates in both Houses the Government have expressed the desire to allow the board maximum flexibility in the appointment of clerks. The various endeavours to narrow the scope of this flexibility have been based on an appreciation of the essential role that the clerk will play in enabling the board to achieve what is expected of it.

We believe that the clerk will be a very important person in the setting up of school boards and should not be appointed lightly. The precise recording of the proceedings and decisions of a statutory body should not be subject to the distraction or possible bias which would exist if the person taking the minutes were a party to the debate. However, at the same time a member of a statutory body should be free to engage fully in the deliberations without being distracted by the need to take minutes. Although individual school boards will be small bodies conducting their affairs with a degree of informality and with substantial flexibility, it must be remembered that they are statutory bodies with substantial statutory responsibilities, and their administration should be structured with this in mind.

The provision sounds more rigid and formal than I hope will be the practice. I am sure that with good will it could be done with a great deal of informality. I would even suggest that the better the clerk, the less formal the procedures would need to be. I beg to move.

Lord Sanderson of Bowden

My Lords, the noble Lord said that the amendment is intended to prevent a member of the board acting as a clerk. It would not have that effect. Its effect would simply be to require any clerk to be paid.

There are two points to make here. First, we think that it is quite appropriate for a board member to act as a clerk if the board wishes. In rural areas it may be the only sensible course. Secondly, we think it is quite wrong for a board to vote to pay one of its members. If a member serves as a clerk he may be reimbursed for expenses but he certainly should not be paid.

As presently drafted, Clause 6(9) allows a board flexibility both in the choice of clerk and in the matter of payment. In Committee we discussed the appointment of the clerk and there was widespread agreement that flexibility was the right approach. I recall the words of my noble friend Lady Blatch in commenting on the existing position south of the Border: The arrangements for remunerating a clerk vary from no remuneration at all, when it is an entirely voluntary job which is often done very well, to a clerk being paid as an extension of the school secretary". She went on to say: It would be quite wrong to start out with an arrangement that is wholly professional and calls upon only professionals to do the job. The voluntary element is a very important part of this work".—[Official Report, 18/10/88; col. 1074.] I concur with what she said, at that time.

There is nothing to stop a board and its clerk coming to an agreement about a fee for the clerk's services—provided the clerk is not a board member. I think it is wrong however to require boards to pay their clerks. The voluntary element is very important to the school board system. Members of boards themselves are volunteers. People exist who are prepared to offer their services free of charge, and very good service they often give. I do not think it is therefore right to accept this amendment with the explanation that I have now given.

Lord Carmichael of Kelvingrove

My Lords, I am disappointed. I can understand that in certain circumstances one will be fortunate enough to recruit people who are able competently to carry out this work. However, in many other cases—perhaps the majority—it may not be posssible. Therefore it would be better to appoint a clerk with some more specialised knowledge.

However, we discussed the matter at considerable length last time. It appears that the Government are unwilling to concede on it. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Exercise of functions of Boards]:

Lord Carmichael of Kelvingrove moved Amendment No. 11: Page 6, line 40, leave out ("ensure that") and insert ("act in accordance with").

The noble Lord said: My Lords, at an earlier stage both in the Commons and in your Lordships' House amendments have been proposed to give school hoards the duty placed upon education authorities by Section 1 of the Education Act 1980 to secure adequate and efficient provision of school education. In both Houses Ministers have responded that such an amendment is superfluous and that the duty is contained in Clause 8(5) of the Bill.

The noble Lord, Lord Sanderson of Bowden, said (Official Report, 18th October 1988, col. 1020): Under the terms of Clause 8(5) a hoard must act in accordance with its education authority's statutory duties. Indeed Clause 8(5) goes further in requiring boards also to act in accordance with the authority's obligations under the common law".

Clause 8(5) as presently drawn does not specifically impose these duties. It merely requires that the school board shall ensure that the statutory and common law duties of the education authority are complied with. That would indicate that in a delegated matter the board could not take action which would place the education authority in breach of its statutory or common law duties. By so doing the board would itself be in breach of its duty under Clause 8(5). However, the duty as presently expressed, might be considered ambiguous and the provision could be interpreted as imposing a duty on the boards to monitor and possibly even enforce the education authority's discharge of its duties. Leaving that possible ambiguity aside, the amendment is a more precise expression of the Government's intention as stated by the noble Lord, Lord Sanderson, than the previous provision afforded. I beg to move.

5.30 p.m.

Lord Sanderson of Bowden

My Lords, I recognise some of my own words and I thank the noble Lord, Lord Carmichael. We ought to go over this point because it is very important.

As drafted Clause 8(5) requires a school board to ensure that, in the exercise of the functions given to it under the Bill the duties placed on its education authorities either by statute or by common law are complied with. I do not believe that the amendment adds anything to this statutory duty in principle. The amendment is therefore unnecessary.

I made a vigorous defence of Clause 8(5) in the context of school boards being bound by statutory duties upon education authorities. I drew a response from the noble Lord, Lord Carmichael, and perhaps in this case I can quote him: I accept that the Minister has covered the situation very well in Clause 8(5)". The noble Lord is quite correct. We have indeed covered the situation well, but I should point out some drawbacks which we perceive in the amendment he has proposed.

First, he has omitted to remove the words "is duly complied with" from the end of the subsection. This amendment would therefore leave the provision completely meaningless. Secondly, and more important, his amendment uses terms which are accurate enough for everyday speech but will not do for legislation. In strict terms, boards cannot "act in accordance with" the duties placed on their authorities. They may—as the Bill provides—act so as to ensure compliance with these duties but they could only "act in accordance with" duties placed directly on themselves.

If the noble Lord seeks assurance that the common meaning of his amendment is properly covered by the terms of the Bill as it stands, I am happy to reassure him. But I cannot accept the amendment.

Lord Carmichael of Kelvingrove

My Lords, if my amendment is in any way flawed, I understand perfectly well that the Minister is unable to accept it. Perhaps he would allow me to take it away and consider it again after consultation. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Relations between Boards and parents]:

Lord Sanderson of Bowden moved Amendment No. 12: Page 8, line 6, after ("(a)") insert ("as often as appears to them to be necessary but, in any event—

  1. (i) not more than 12 months after their establishment, and
  2. (ii) at intervals of not more than 12 months alter the first such report,
make a").

The noble Lord said: My Lords, in speaking to Amendment No. 12, I also speak to Amendments Nos. 13 and 14. I undertook in Committee to look again at this clause and to come for ward with a suitable amendment to accommodate your Lordships' wishes. The amendment before you fulfils that commitment, indeed, we have gone further than was proposed in Committee. We have spelled out that boards will have to make a report about their activities at least once within every 12-month period. We have also provided that boards must make their first report to parents within one year of their establishment.

Although we have agreed to provide a minimum requirement for a report once in each year, our intention remains that boards' performance should not gravitate towards that minimum requirement. We shall be issuing guidance which will lay emphasis on the merits of making reports to parents very frequently. In the words of the Bill: "as often as it is necessary". The intention is that boards communicate with parents frequently and as often as issues of substance and of local interest arise. The need is to hold parental interest in board activities; and frequent, meaningful reports will meet that need.

I should like to mention annual meetings. We have provided for boards to report on their activities to parents at least once a year. It might well be that a board would wish to hold a meeting to consider a report on board activities. This would form part of the essential methods of communication between boards and parents. We shall, as I have said, be issuing guidance which highlights the value of close communication between boards and parents and indeed emphasises a board's duty to communicate with parents. However we do not need a fixed annual meeting to achieve this. It is far better to have meetings to discuss specific issues as they surface throughout the year. Efforts to communicate should not polarise around the idea of "the annual meeting". What we need and what we have provided is flexibility of provision to meet flexibility of board action. It would not suit our purpose to restrict that flexibility. Moreover, the provisions of Clause 13—which I drew to your Lordships' attention at Committee stage—remain relevant and important. It is open to parents to demand and secure a meeting with the board at any time. If a board issued a report which parents wished to challenge or question and the board did not propose a meeting to discuss it, then the parents themselves could call for and secure such a meeting. If I were chairman of that board I would arrange the meeting rather fast.

It is worth pointing out to your Lordships that no provision exists in English legislation for parents to demand a meeting with boards of governors. In responding to your Lordships' wishes I have interpreted the wish of the House that we should move in the direction which these amendments seek to do. I beg to move.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to the Minister for taking on board the genuine feeling expressed by various parts of the House on the question of reports and by bringing forward these amendments. I am not sure whether it is quite adequate. The guidelines will need to be specific. In certain cases there will need to be special seminars to keep chairmen in touch with members. A horror we have in mind is that small groups may dictate to a whole area, providing even less responsibility than the locally elected representatives.

However the Minister's intention is obviously excellent. One of the great difficulties we all have is writing down intentions in the words of an Act of Parliament. I am grateful to the Minister for his effort and thank him for it.

Baroness Carnegy of Lour

My Lords, I back up what the noble Lord, Lord Carmichael, has said. The House will be grateful for the amendment because the view was taken on all sides at Committee that communication between the boards and the parents is enormously important. We want an assurance on the face of the Bill that such communications will occur.

As I see it, the amendment will mean that boards will be able to communicate at least once a year and probably more. They will be able to communicate through calling meetings with parents, sending a report by post to every parent or via the pupils. Many will do all three. The ability of the boards to call meetings, as my noble friend says under Clause 13, can also be the other way round with the parents calling the meeting. That should suffice, but hints on its importance should be included somewhere in the guidance and would be useful. I am grateful for the amendment.

Lord Mackie of Benshie

My Lords, I too approve of the Minister's amendment.

Lord Kirkhill

My Lords, this is a split of North-East graciousness which is quite remarkable. I have one question for the Minister. What kind of activity does he envisage might occur which would be of such consequence that a board might wish to report to parents?

Lord Sanderson of Bowden

My Lords, under our amendments we require a board to report to parents. I should have thought that such a report should have the basis of any substantive situations which ought to be drawn to the attention of parents. I believe that following from that it would be the board's decision as to whether the importance of what it was reporting required a meeting. It is important that the position should not arise where the minimum requirement is merely that, as I understand has happened in some parts of England and Wales.

I turn to the question of whether special meetings must be called on any point which the board considers it necessary to draw to the attention of parents. For example, any major alterations in the staffing of the school is the kind of issue which could be drawn to the attention of parents. I believe that under such circumstances the board ought to consider calling a parents' meeting.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 13: Page 8, line 8, after ("(b)") insert ("as often as appears to them to he necessary.").

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 14: Page 8, leave out line 10.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 15:

Page 8, line 10, at end insert— ("(3) Notwithstanding subsection (2) above, a School Board must ascertain the views of parents before either—

  1. (a) reaching a decision on whether to agree to a delegation order under section 15 of this Act at the request of their education authority, or
  2. (b) making a request to their education authority to make a delegation order under section 15 of this Act.").

The noble Lord said: My Lords, the position of the school boards was debated earlier and the amendment attempts to explain our concern to the Government. We believe that school boards must be representative and accountable to their electorate. Those attributes are of particular importance with regard to delegation orders.

As the Bill stands, a school board must consult parents only if it wishes to pursue a request for the delegation of a function where the education authority has refused the request. School boards may take on delegation functions without ascertaining the views of parents where an education authority initiates such a proposal and the school board agrees to it or where the school board requests a delegation of function and the education authority agrees.

In Committee a number of amendments to Schedule 3 were debated. They would have required a school board to ballot parents in all cases where delegated functions were being considered. The noble Earl, Lord Dundee, dismissed the amendments by saying that the effect would be to produce a recipe for democracy run riot. He went on to say: The Bill already provides separately for the boards to have a duty to communicate with parents. There is a general duty to this effect in Clause 12. In correspondence with Lothian Parents' Action Group the Scottish Minister responsible for education and health has clearly stated his view that a board which is considering taking on substantial functions would need to let parents know about its proposals as part of its discharge of that duty".—[Official Report 20110188, col. 1293.]

The purpose of the amendment is to ensure that the need to consult parents where delegated functions are sought does not depend only on a general duty but should be clearly stated in the legislation. For example, an education authority may wish to delegate to a school board the provision of footwear and clothing, the hiving off of the provision for school meals or the collection of money for school meals. We believe that local people should have a say in such decisions because, particularly in the case of clothing and footwear, they are better left to the central rather than the local authority. If the matter were dealt with locally the situation would be too well known and there would be no anonymity. It would be better for someone to obtain "necessary clothing", as it used to be called, from a central body rather than going round the corner where everyone would know. I hope that with such an example in mind the Minister will agree that the issue is more complicated than merely democracy run riot, which I have never thought to be bad in any event. I beg to move.

5.45 p.m.

The Earl of Dundee

My Lords, during debate in Committee the noble Lord, Lord Carmichael, moved an amendment to Schedule 3 of the Bill whose cumulative effect would have been to require a ballot of parents on every proposal for delegation to a board. At that time I suggested that the amendments were unnecessary in light of the extensive range of safeguards and provisions we have included in the Bill to ensure that boards are representative and accountable.

The noble Lord, Lord Carmichael, in response acknowledged that his amendments would be taking rather more powers than are required and kindly withdrew his amendment. The amendment before us is his attempt to introduce a less cumbersome procedure. It requires boards to ascertain the views of parents before deciding to take on new functions.

Boards are already under a general duty to ascertain parents' views and to communicate with parents. This amendment adds little to that duty except to require a board to go through some unspecified procedure every time a delegation, no matter how small or uncontroversial, is in question.

This amendment introduces a requirement to ascertain views on specific matters. It provides no detailed procedure which boards might undertake to show that they had satisfied this duty. When a procedure was proposed in Committee it proved to be too cumbersome, which the noble Lord, Lord Carmichael acknowledged.

My noble friend Lord Sanderson arid I were glad to be able to accommodate the concerns of the House about the minimum requirement for a board report to parents. I think that we can all agree that this has strengthened the safeguards and provisions on board accountability. We must not move too far and try to cater for every conceivable contingency. I ask the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove

My Lords, I accept that one must not over-restrict the boards with legal necessities, and we have tried to avoid doing so. When looking into the crystal ball of the future one can see many more desirable things. We have chosen to raise with the Government what appear to be obvious areas where danger may arise. However, they feel sufficiently sanguine that they have the matter under control, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Financial powers of Boards]:

The Earl of Dundee moved Amendment No. 16:

Page 11, line 42, at end insert— ("(1A) A School Board shall keep proper accounts in relation to any sums received by them under subsection (1) above.").

The noble Earl said: My Lords, in Committee I said that I would consider further the question of whether the Bill should make provision for gifts and funds raised by boards for the benefit of the school to be properly accounted for. Noble Lords on all sides of the House were concerned about the treatment of such gifts and funds. My sole doubt about the efficacy of an amendment to the Bill on this matter centred around the possibility that some boards might conceivably be dissuaded from raising funds by such a formal requirement. However, on balance I am convinced by the arguments that have been put forward.

The amendment provides that funds held by the board under Clause 18 are to be the subject of proper accounting procedures. Boards will of course need advice on these matters and they will be able to seek such advice from their own authority if they so choose. Indeed authorities themselves might wish to offer such advice: they might also offer accounting and auditing services which would be attractive to boards. As drafted however the amendment will allow boards choice in the matter. This is only right.

I trust that this amendment allays the fears that have been expressed on the stewardship of these funds and I commend it to your Lordships. I beg to move.

Lord Carmichael of Kelvingrove

My Lords, I am glad that the Government have paid attention, as I am sure they always do, to what was said in your Lordships' House on the last occasion and have come some way towards meeting our anxieties.

Lord Mackie of Benshie

My Lords, this is a sensible amendment.

On Question, amendment agreed to.

Clause 22 [Interpretation]:

Lord Carmichael of Kelvingrove moved Amendment No. 17:

Page 14, line 14, at end insert— (""occasional holidays" means holidays during term-time and does not include days on which a school is closed to pupils for the purpose of in-service training.").

The noble Lord said: My Lords, this was a problem which caused some difficulty at the last stage and concerned occasional holidays. In Clause 14(2) of the Bill school boards are empowered to fix occasional holidays. During the debate on the question of occasional holidays the noble Earl, Lord Dundee, referred to in-service training. As regards Clause 8(5) on the duty of the board he said: This would ensure, for example, that authorities could insist on a degree of co-ordination on occasional closures if the authorities themselves were obliged to organise in-service training for teachers to meet national requirements".—[Official Report, 18/10/88; cols. 1104–1105.]

We believe that that reveals a possible ambiguity in the meaning of occasional holidays. It appears that education authorities are of the view that occasional holidays are those holidays left after the term dates have been fixed and which generally are available for allocation to local public holidays. That is quite different from in-service training where the school is closed but the teaching staff is not on holiday. Those days are not viewed as holidays and it is important that the education authorities should be given power to retain control over their arrangements for in-service training.

In circumstances where there is the risk of ambiguity, it is always desirable to place the matter beyond doubt and that is the intention of this amendment, which leaves the education authority capable of the efficient arrangement of its in-service training while affording the boards all the power they require to fix occasional holidays in accordance with the local needs of the different parts of the country. I beg to move.

Baroness Carnegy of Lour

My Lords, I see the point made by the noble Lord but I do not believe that this amendment will meet it. There is a statutory number of attendances which pupils are required to make in the school year, so that an occasional holiday would always be instead of another day. It would not be additional; that is one point.

The wording of the amendment implies that occasional holidays could be in the holidays. Of course, one cannot have a double holiday. Occasional holidays have to be fixed at a time when pupils are not on holiday. If the school is closed to pupils because the teachers are carrying out in-service training there is not much point in the pupils being told that they had a holiday, because they are in any event having a holiday. The school is closed to them. I believe that the noble Lord's wording of this amendment is somewhat confusing.

Lord Carmichael of Kelvingrove

My Lords, with the leave of the House perhaps I may try to explain that if occasional holidays also meant that they could be taken when there was in-service training involved, it would mean that in the main teachers would not be able to participate in the reasons for the specific occasional holiday. I am thinking in terms of something like the Lanimer Fair in Lanark, which is an ancient holiday, and there are many other Border holidays where one would not want confusion. I believe that there would be great trouble if the teaching staff of schools were not able to take part in the riding of the marshes. That is what I am trying to achieve; namely, that special local holidays should be quite distinct from in-service training in which teachers are involved.

Following what was gleaned from the remarks of the noble Earl in the last debate, I thought that these words would have cleared any ambiguity but of course I am willing to listen again to the words of the Minister.

The Earl of Dundee

My Lords, we did of course have a most interesting debate during Committee on the question of who should determine occasional holidays. I appreciate the points made then about the need for a measure of co-ordination and the need for boards to observe authorities' statutory obligations to provide in-service training days for teachers. Clause 8(5) does of course oblige boards to act in accordance with their authority's statutory and other legal duties.

The amendment of the noble Lord, Lord Carmichael, attempts to define occasional holidays but its effect goes further than that. What it does is to empower an education authority to decide in all cases when in-service training days should take place. In practice education authorities provide in-service training at two levels—local school level and authority level. It is entirely reasonable that boards should be allowed to determine—subject to consultation with the authority, as the Bill provides—when local in-service training should take place. This will allow them to plan other occasional holidays more efficiently and effectively. For this reason I cannot accept the noble Lord's amendment and I ask him to withdraw it.

Lord Carmichael of Kelvingrove

My Lords, I believe that this could be an omission that could lead to considerable local difficulties. Perhaps some sort of general direction at a later point is needed. I am sorry that the Government did not see fit to consider the matter more fully but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Appointment of headteachers, deputies and assistants]:

The Earl of Dundee moved Amendment No. 18: Page 16, line 3, after ("post") insert (", other than on an acting basis,").

The noble Earl said: My Lords, during debate in Committee on the appointment procedure for head teachers and senior staff, some doubts were expressed by the noble Lord, Lord Hughes, and my noble friend Lady Carnegy concerning the effect of the schedule when the head teacher was ill. My noble and learned friend the Lord Advocate confirmed that Schedule 2 effectively prevents deputy and assistant head teacher posts being filled on a permanent basis. However, he made it clear that the schedule did not apply to arrangements made to cover posts on an acting basis.

My noble and learned friend thought that there was some doubt in the Committee's mind on this point. Bearing in mind our intention that the Bill should be as clear as possible, the purpose of this amendment is to put beyond doubt that the provisions of Schedule 2 apply to the circumstances where an education authority intend to fill a post of head teacher, deputy head teacher or assistant head teacher other than on an acting basis. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 19: Page 16, line 21, after ("but") insert ("pupils of the school and").

The noble Lord said: My Lords, Amendments Nos. 19 and 21 are grouped with Amendments Nos 20 and 22 in the name of the noble Lord, Lord Carmichael of Kelvingrove. The noble Lord opposite has brought forward an amendment which would exclude pupil members of school boards from participating in the appointment procedures for head teachers and senior staff. For this I thank the noble Lord. However, we have tabled a similar amendment which I am sure the noble Lord will agree fully meets this point. It has always been our intention that pupils should not take part in the selection of the head teacher or senior staff of their school. I am sure your Lordships will agree that this would be taking pupil democracy too far. We intended that boards' standing orders should cover this situation, but, reading your Lordships' views and reflecting on our purpose of making this Bill as clear and as comprehensive as possible, I decided that there should be the express statutory provision to exclude pupils from the appointment procedures. These amendments provide that provision. I beg to move.

6 p.m.

Lord Carmichael of Kelvingrove

My Lords, again I thank the Minister, who has gone a long way in general to meet our queries. There were a couple of points that I had intended to raise but by and large the Minister has satisfied me. I thank him for bringing forward the amendments.

On Question, amendment agreed to.

[Amendment No. 20 not moved.]

Lord Sanderson of Bowden moved Amendment No. 21: Page 176, line 16 after ("staff') insert ("or any pupil").

On Question, amendment agreed to.

[Amendment No. 22 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 23: Page 18, line 14, leave out from ("shall") to ("the") in line 15 and insert ("be competent for an Acting Headteacher or other person nominated by the education authority to exercise").

The noble Lord said: My Lords, there may be occasions when a school will be run by an acting head teacher, perhaps due to the long-term illness of the head teacher. As the Bill is drafted, any senior appointment at that school could not be made and would remain vacant for a long period. Although this would not be a common occurrence, we do not consider that the number of occasions where there is a significant delay would be all that small. It would be noticeable enough to need attention. The noble and learned Lord, Lord Cameron of Lochbroom, suggested at an earlier stage of our proceedings that the problem would be minuscule, but we take issue with that statement.

However, even if that situation were to occur in only a small number of schools, having an absent head teacher and one or more senior posts vacant at the same time must have a damaging effect on the running of any school. In Committee I mentioned examples in the central region where the head teacher had been absent for a significant time. I have examples from other parts of the country—Dumfries and Galloway—but at this stage I shall not bore the House by reciting them.

The noble and learned Lord the Lord Advocate also suggested that a senior vacancy could be filled on a temporary basis until the head teacher returns or is replaced and a properly constituted appointments board could sit. That solution can only be unsatisfactory compared to what we seek to provide in this amendment. For example, adveritising a senior post on a temporary basis would not attract the same range of candidates as would a full-time appointment. Therefore I hope that the Minister will have given serious thought to this matter and will see our amendment as an attempt to solve a problem. The problem may not occur all that frequently, but it can occur far more often than was suggested by the noble and learned Lord. I beg to move.

Baroness Carnegy of Lour

My Lords, I shall listen carefully to what my noble friend says in reply to the amendment. He has done terribly well in sorting out a number of wrinkles in this Bill, but this is one aspect that is still of concern to me.

From a purely practical point of view situations could arise which are difficult to resolve., as the noble Lord, Lord Carmichael, said. Therefore, if the reply from my noble friend is not entirely satisfactory perhaps we may have a little more correspondence on the subject.

Lord Sanderson of Bowden

My Lords, during the Committee stage there was indeed a long discussion on what would happen if a senior staff position fell vacant during the extended absence of the head teacher. My noble and learned friend the Lord Advocate explained that there was a mechanism for dealing with such a situation. Both the vacant head teacher and senior staff post would be covered on an acting basis by the authority.

However, there was some doubt and we therefore brought forward our Amendment No. 18 to put the matter beyond all doubt. By filling the vacancy on an acting basis the possibility that the post would lie vacant for any length of time has been avoided. Also avoided is the equally important possibility that the acting head teacher, who will himself he a deputy or assistant head teacher, is not put in the embarrassing and difficult position of a possible conflict of interests.

I understand the difficulties of the situation and therefore it is important that I spell it out. I suspect that the noble Lord's purpose in moving this amendment is to provide a clear mechanism for dealing with extended absences of head teachers. I have already indicated that we have dealt with this and I therefore hope that the noble Lord, in considering what I have said, will agree to withdraw his amendment. The power remains with the authority "on an acting basis". Those are the words I have used, which I think cover what I admit is a tricky situation in dealing with the appointments issue.

Baroness Carnegy of Lour

My Lords, with the leave of the House, may I put this question to my noble friend? Is he saying that the authority tells someone, "You will be the acting head teacher" and that that implies, because of Amendment No. 18, that he has the full responsibilities of a head teacher? Perhaps I have misunderstood the position.

Lord Sanderson of Bowden

My Lords, with the leave of the House, the acting head teacher can do everything in relation to what he must do as an acting head teacher. What he cannot do is become chairman of the committee which deals with such situations. I hope I have made myself clear.

Lord Carmichael of Kelvingrove

My Lords, I have a feeling that we do not yet have this right, but I am sure the Minister will read what has been said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Delegation Orders]:

Lord Carmichael of Kelvingrove moved Amendment No. 24: Page 19, line 11, after ("school") insert ("or the most economic, effective and efficient provision of education").

The noble Lord said: My Lords, paragraph 8 of this schedule states that the Secretary of State must only have regard to the good running of the school when considering a request for delegation of a function to a particular school. If the Secretary of State were to accept the views of the education authority and not agree to delegate the function, then those considerations must relate only to the school concerned.

Where, for example, a school board wishes the provision of school meals or school cleaning to be delegated, surely value for money is also a relevant factor which the Secretary of State should have regard to. An education authority, in compliance with the provisions of the Local Government Act 1988, may achieve the best value for money by packaging a group of schools in one school meals contract. If an education authority argued against the delegation of school meals provision to an individual school on this basis, it may not be considered germane by the Secretary of State. That would be because it relates to the provision of school meals to more than one school.

Surely it is bad legislative practice to constrain the Secretary of State to having regard to only one matter when reaching a decision in all circumstances, however important that matter might be. The Minister may remember that we had this problem of school grouping at an earlier stage of the Bill when dealing with contracts in general. This is an extremely important specific part of that aspect and I hope the Minister will give it due consideration. I beg to move.

Lord Sanderson of Bowden

My Lords, my noble and learned friend the Lord Advocate carefully explained in Committee the procedure for delegation of functions. I shall not repeat at length the provisions of the schedule; however, the framework of the delegation procedure must be clearly understood. In response to anxieties that boards might seek to take on additional functions against the wishes of local parents, provisions requiring a board to call for a ballot of all parents of pupils at the school before they proceed to appeal have been included in the Bill. Both the authority and the board have an opportunity at this stage to put their case to the parents. If the authority believes that wider considerations of the kind proposed in this amendment are material, it may put them before the parents. Only if a majority of the parents voting in the ballot supports the principle of delegation is the board allowed to make an appeal to the Secretary of State.

Again both the authority and the board have the opportunity to put their considered case to the Secretary of State and that is important. Once again there is nothing in the Bill to prevent an authority drawing attention to wider considerations of the kind envisaged here. The Secretary of State will consider the whole views of the education authority and the school board and unless he is satisfied that the delegation requested would prejudice the good running of the school he will direct the education authority to make a delegation order in the terms he considers appropriate. This is entirely in line with the overall intention of the Bill which is to encourage school boards to take on additional functions when they feel ready to do so with the endorsement of the parents when appropriate.

The effect of the amendment would be to require the Secretary of State to have regard to a very widely drawn and unspecific criterion of effective, economic and efficient provision of education when deciding on an appeal. Such criterion might be wholly irrelevant to a specific function in a single school. In any case, it is difficult to see precisely how the Secretary of State's mind could be addressed to such a criterion as the basis for judgment in a single case. Our whole purpose is to encourage and facilitate the delegation of functions to the local level. The whole thrust of our thinking on delegation centres around boards subject to the views of local parents being ready to take on delegated powers. The onus is rightly on the board, not the authority, to judge when that time has come.

There is no question of the Secretary of State's decision being prejudged. On the contrary, he is obliged by the schedule to consider the views of both the board and the authority and to satisfy himself that delegation would not prejudice the good running of the school. In all the consideration will be evenhanded, fair and reasonable. Both the authority's and the board's cases will be heard. The Secretary of State will make his decision on the grounds that really matter, which we believe to be the interests of the school concerned.

The noble Lord, Lord Carmichael, has pinpointed the question of competitive tendering. This subject was raised at the Committee stage and I wish to emphasise a few points on this matter. On the specific anxiety about a possible conflict between the Bill's provisions on delegation of functions and the Local Government Act 1988, I can assure the noble Lord that there is no such conflict. Clause 8(5) of our Bill requires a board to ensure that, in the exercise of the functions given to it, the duties placed on the education authority by statute are complied with. The provisions of the Local Government Act 1988 place duties on authorities with regard to the tendering of services or "defined activities" as they are termed in that Act. Therefore in the terms of Clause 8(5) of our Bill a board would be required to comply with statutory duties placed upon the authority by the Local Government Act 1988. In any case, it is difficult to see how delegation of responsiblities to school level could do other than open up services to a wider range of potential contractors. It is unlikely that such an action could be said to be anti-competitive.

I wish to emphasise a particular example given by the noble Lord. I also looked at the question of school meals. Under the terms of the Local Government Act 1988 authorities are required to test the efficiency of their services by competition. This may involve the authority in entering a contract with a company for the provision of those services. What I believe is concerning the noble Lord is that an authority might be obliged to break such a contract and remove a school from an area that is covered by the contractor's services because the school board had requested delegation of the function concerned.

That would not be possible. Under Clause 8(5) of the Bill, a board is obliged to act so as to ensure compliance with the statutory duties placed upon its authority. Any contract entered into by the authority under the terms of the 1988 Act would attract this protection. In effect it would be unlawful for the delegation to proceed if it would have the effect of breaking that contract. Of course this does not mean that the contracted areas could never be delegated. Once a contract has run its course, the board could ask for and get control of a particular function, all other things being equal. It would be unreasonable for the authority to try to use the device of contracting to avoid that.

Similarly, there will be nothing to prevent delegation of the control of a function if that was possible within the terms of the contract. In such a case it would simply be a question of management of part of the contracted area passing from the authority to its agent, the board. I have spelt out this matter at great length because as the noble Lord, Lord Carmichael, said, it is an important area and it is particularly important for the authority to understand what we think about contracts entered into under the Local Government Act 1988. With that explanation, I hope that the noble Lord will withdraw his amendment.

6.15 p.m.

Lord Mackie of Benshie

My Lords, perhaps I may put a further point. Let us suppose that the contract has run out and several local schools have found persons with outstanding cooking ability, whether male or female, and who require little money for the pleasure of providing school meals. Let us suppose this applies to three or four schools in the area. It might make it much less economic for the authority to provide the school meals for the rest of the area. This is a point that needs to be looked at. It might be a sound point for refusing delegation if it is going to put up the price of providing school meals in the rest of the area.

Lord Sanderson of Bowden

My Lords, with the leave of the House, what I have said in my general remarks about this is that all other procedures having been gone through, the matter reaching the desk of the Secretary of State, he has to listen to what the local authority has to say and also to what the school board is proposing. That is why I spelt out the contracting situation. I believe that we are quite a long way from that position, but I understand what the noble Lord is saying. As I understand the position, there is absolutely nothing to prevent an authority putting its position to the Secretary of State before a decision is taken by him.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to the noble Lord, Lord Mackie of Benshie, for raising that point which is but one of the many permutations that may arise on the question of competitive tendering. I can envisage this becoming one of those classic cases which almost everyone in the area will understand, and therefore there will be considerable pressure on the board. It is a matter with which everyone will be able to quickly familiarise themselves. I believe that either the Secretary of State will be extremely busy or there may be quite a difficult situation arising from it. However, we shall read the Minister's words. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 [Minor and Consequential Amendments]:

Lord Sanderson of Bowden moved Amendment No. 25: Page 20, line 28, leave out ("Schedule 1 to the Education (Scotland) Act 1981") and insert ("Schedule Al to the Education (Scotland) Act 1980").

The noble Lord said: My Lords, this amendment is a technical one to correct an erroneous reference to Schedule 1 to the Education (Scotland) Act 1981. I beg to move.

Lord Hughes

My Lords—

The Deputy Speaker (Lord Strabolgi)

My Lords, I am informed that there is a printing error as regards this amendment as it appears on the Marshalled List. I propose to read it out with the correction if that is acceptable to the noble Lord?

Lord Sanderson of Bowden


The Deputy Speaker: The amendment should read: Page 20, line 28, leave out ("Schedule 1 to the Education (Scotland) Act 1981") and insert ("Schedule A1 to the Education (Scotland) Act 1980").

Lord Hughes

My Lords, the only reason I stood up was to draw attention to the fact that "21" was wrong and to prove that I had read the amendment.

The Deputy Speaker

I am very grateful to the noble Lord.

On Question, amendment agreed to.